Guilty verdict in MySpace suicide case could chill Internet speech

A high-profile Internet legal case that just concluded here will have a chilling effect on users of social networking sites such as MySpace and Facebook if the verdict holds up on appeal, legal experts say.

A Los Angeles jury on Wednesday convicted Lori Drew – the defendant in the so-called "MySpace Suicide Case" – of three counts of illegally accessing computers. But the six-man, six-woman panel could not reach a unanimous verdict on the single count of conspiracy.

"What happened to Megan Meier was a tragedy, not a crime," says Andrew Grossman, senior legal policy analyst in the Center for Legal and Judicial Studies at the Heritage Foundation in Washington. "This case should never have been brought. The strongest evidence for the prosecution had nothing or little to do with the charges. This verdict is a loss for civil liberties and leaves all Internet users at risk of prosecution under federal law. It is a prime example of overcriminalization."

Other legal experts agree.

"The statute was never intended to cover this kind of conduct," says Michael Scott, professor of law at Southwestern School of Law, Los Angeles. "Lori Drew did not do the key acts that the prosecution alleged, but rather a third party did, so it seems strange that the person who pulled the trigger is not prosecuted but the one standing next to her is."

"What Drew really did was harassment and the fact that she used the Internet was just kind of an accident," says Sheldon Rampton, research director for the Center for Media and Democracy in Madison, Wis. "A lot of people do things on the Internet that are not nice, but that doesn't mean they should all be criminalized."

Attention and outrage about the incident first surfaced in late 2007, nearly a year after the suicide in O'Fallon, Mo. On MySpace, Drew created a 16-year-old boy named "Josh Evans" who subsequently began to send messages to 13-year-old Megan Meier, who had recently ended her friendship with Drew's daughter, Sarah. Pretending to have just moved to Dardenne Prairie, a small town just a few miles south of O'Fallon, "Josh" befriended the 13-year-old and feigned romantic interest. Prosecutors allege that Drew wanted to learn about Megan and what had happened to the friendship with Sarah.

After a while, "Josh" told Megan, "I don't know if I want to be friends with you anymore, because I've heard that you are not very nice to your friends."

The next day "Josh" wrote: "Everybody in O'Fallon knows how you are. You are a bad person and everybody hates you.... The world would be a better place without you." Megan responded, "You're the kind of boy a girl would kill herself over," and then hanged herself in her bedroom closet.

Federal prosecutors brought the case to trial in Los Angeles because MySpace is headquartered in Beverly Hills and the US Attorney has claimed jurisdiction. Missouri law enforcement officials said they did not bring charges because they had not found enough evidence.

The indictment laid out four charges: three for violation of a federal criminal statute and one for conspiracy to violate that statute, known as the Computer Fraud and Abuse Act (CFAA), which criminalizes unauthorized access to computer systems.

Mr. Grossman says the statute is "loosely drafted" – a problem that has received little attention until now.

Apart from the lurid details of the case, the legal ramifications are being watched very closely because "it could really widen the way the computer fraud statute is used nationally," says Mr. Scott. "Because there is a young girl who has died, and the evidence says the defendant targeted her to emotionally harm her, the case obviously resonated with the jury, especially since the [deceased] girl's parents were in the courtroom."

But Grossman and many others say the prosecution overreached.

"The CFAA was intended to be used for computer fraud, hackers, etc., it was never intended to be used to criminally prosecute someone who violated the terms of a website's Terms of Use [TOU], which is the core of their case," says Kelly Strader, professor of law at Southwestern. "If merely violating a provision of the TOU makes you a felon, then virtually everyone that has ever used the Internet is a felon. That is the problem going forward if this conviction holds up."

"This is troubling," says Mr. Rampton, "because it could have a chilling effect on free speech on the Internet. There is a long tradition of anonymous free speech in this country and the tech leaders on the Internet are trying to come up with some good way to balance anonymity with accountability."

In the case itself, US District Judge George Wu has yet to rule on a defense motion for dismissal on grounds that Drew could not be held responsible for violating the service rules of the MySpace social networking site because there is no proof she ever read them. In comments to lawyers, the judge cited a rule under which he may wait until after a verdict to rule on the motion.